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There are copious amounts of case law on issues of custody and access, yet every now and then a surprising case still emerges. Morant v. Noel (“Morant”) is such a case.

In Morant, the mother was seeking an Order of sole custody, where the father was seeking joint custody. The child at issue was five years old and had essentially been on a shared custody regime her whole life, spending roughly half her time with each parent. However, technically the mother’s home was the primary residences and she had an existing Order of sole custody. The child slept at the mother’s home Monday to Friday, but was with the father all evenings until about 6:30-7:30pm.

In this decision, Justice Karswick turned around the custody situation by Ordering joint custody with the father’s home being the primary residence. Justice Karswick rationalized this switch by stating that the mother’s schedule, which included school and work, made it difficult for her to be home for the child. Justice Karswick further stated that the father was home more, had a more accommodating schedule and disposition.

The fact that the mother had thwarted the father’s access on a number of occasions was a factor in this decision. Of course, all custody and access decisions are highly contextual and fact based, which must be remembered in any reading of this case.